Skip to main content Accessibility help

Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights, and TWAIL Discourse

Published online by Cambridge University Press:  23 January 2015

Aaron A. Dhir
York University
E-mail address:


The expansion of extractive corporations’ overseas business operations has led to serious concerns regarding human rights–related impacts. As these apprehensions grow, we see a countervailing rise in calls for government intervention and in levels of socially conscious shareholder advocacy. I focus on the latter as manifested in recent use of the shareholder proposal mechanism found in corporate law. Shareholder proposals, while under-theorized, provide a valuable lens through which to consider the argument that economic behaviour is embedded within social relations. In doing so, I situate my analysis within Third World Approaches to International Law (TWAIL) scholarship. Elsewhere, I have supported the use of corporate law tools in advancing the international human rights enterprise and argued that investment activism can be an essential component of this advancement. This paper represents a reflexive pause. Using the case study of a recent proposal submitted to Goldcorp Inc., I seek to problematize the shareholder proposal as a human rights advocacy tool and to examine it as a site of contestation.

Special Issue: Human Rights and Business
Copyright © Society for Business Ethics 2012

Access options

Get access to the full version of this content by using one of the access options below.


Prior versions of this paper were presented at workshops and conferences held at Harvard Law School, the Harvard Kennedy School, UCLA School of Law, Emory University School of Law, the School of Oriental and African Studies at the University of London, University of Oregon School of Law, and Jindal Global Law School. I am indebted to colleagues at each meeting for their constructive feedback. I also wish to thank Shin Imai, Obi Okafor, Larry Mitchell, James Gathii, Tony Anghie, Sara Seck, Catherine Coumans, Michael Fakhri, Vincent-Joël Proulx, Mercedes Perez, Faisal Bhabha, the three anonymous referees, and the guest editors of the special issue, as well as Peter Chapman and Jennifer Coulson for their critical engagement with aspects of this paper. Finally, I acknowledge, with appreciation, the research assistance of Jessica DiFederico and the editorial assistance of Chad Travis.

1. For a discussion of corporate social responsibility developments within the context of Polanyi’s work, see Utting, Peter, Rethinking Business Regulation: From Self-Regulation to Social Control (United Nations Research Institute for Social Development, Technology, Business and Society Programme Paper No. 15; Sept. 2005), 13ff, available at﹩file/utting.pdf.Google Scholar

2. See POLANYI, KARL, THE GREAT TRANSFORMATION: THE POLITICAL AND ECONOMIC ORIGINS OF OUR TIME 68 (1944)Google Scholar (“never before our own time were markets more than accessories of economic life. As a rule the economic system was absorbed in the social system”). See also Barber, Bernard, All Economies are “Embedded”: The Career of a Concept, and Beyond, 62 SOCIAL RESEARCH 387, 401 (1995);Google Scholar and Block, Fred, Karl Polanyi and the Writing of The Great Transformation, 32 THEORY AND SOCIETY 275, 276 (2003).Google Scholar

3. Banks, Mark, Karl Polanyi, The Rubberband Man (December 12 2008), available at Scholar

4. Block, , supra note 2, at 297.Google Scholar

5. Polanyi, , supra note 2, at 76Google Scholar (“While on the one hand markets spread all over the face of the globe…on the other hand a network of measures and policies was integrated into powerful institutions designed to check the action of the market…Society protected itself against the perils inherent in a self-regulating market system”).


7. Beckert, Jens, The Great Transformation of Embeddedness: Karl Polanyi and the New Economic Sociology (MPIfG Discussion Paper 07/1; 2007), 8, available at Scholar

8. See, for example, Bill C–300, Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act, 2nd Session, 40th Parliament, 57–58 Elizabeth, II (2009), available at Scholar

9. I should note that this is my own description and that shareholders who engage with social policy and human rights issues may not describe their activities in this manner. There are a range of interests, aims, and strategies at play and these shareholders form a diverse group.

10. The use of the term “Third World” in this context is meant to include “the group of states and peoples who ‘self-identify’ as such.” See Okafor, O.C., Marxian Embraces and De–couplings in Upendra Baxi’s Human Rights Scholarship: A Case Study, in INTERNATIONAL LAW ON THE LEFT 253, n. 4 (Marks, S. ed., 2008).Google Scholar That said, there are of course complexities associated with this term. As Alvarez notes, the term has “historical baggage” and no longer exists “as an identifiable geographic space on which all agree.” See Alvarez, J.E., My Summer Vacation (Part III): Revisiting TWAIL in Paris (Sept. 28, 2010),Google Scholaravailable at Others, however, have argued that “although the concept may no longer have much coherence in a strict geographic sense, it may have significant use in conceptualizing an anti-subordination politics” and that “it allows us to critique the strictly hierarchical ordering of the global community on both state and, importantly, non-state levels … [and] also locates the origins of this hierarchical ordering of states and regions in the direct experience of subordination occurring under colonialism and imperialism.” See Aoki, Keith, Space Invaders: Critical Geography, The ‘Third World’ in International Law and Critical Race Theory, 45 Villanova Law Review 913, 924, and 926 (2000) (citations omitted).Google Scholar

11. Polanyi, , supra note 2, at 159.Google Scholar For more on this point, see Fakhri, M., Law as the Interplay of Ideas, Institutions, and Interests: Using Polyani (and Foucault) to ask TWAIL Questions, 10 INTERNATIONAL COMMUNITY LAW REVIEW 455, 460–61 (2008).Google Scholar

12. Dhir, Aaron A., Realigning the Corporate Building Blocks: Shareholder Proposals as a Vehicle for Achieving Corporate Social and Human Rights Accountability, 43 AMERICAN BUSINESS LAW JOURNAL 365 (2006)Google Scholar (Dhir, “Realigning“); Dhir, Aaron A., The Politics of Knowledge Dissemination: Corporate Reporting, Shareholder Voice and Human Rights, 47 OSGOODE HALL LAW JOURNAL 47 (2009)Google Scholar (Dhir, “The Politics“). For a recent sample of this burgeoning literature that has appeared in this particular journal, see Arnold, D., Transnational Corporations and the Duty to Respect Basic Human Rights, 20 BUSINESS ETHICS QUARTERLY 371 (2010);Google ScholarKobrin, S., Private Political Authority and Public Responsibility: Transnational Politics, Transnational Firms, and Human Rights, 19 BUSINESS ETHICS QUARTERLY 349 (2009);Google Scholar and Hsieh, N., Does Global Business Have a Responsibility to Promote Just Institutions?, 19 BUSINESS ETHICS QUARTERLY 251 (2009).Google Scholar

13. The Public Service Alliance of Canada Staff Pension Fund, the Ethical Funds Company, the First Swedish National Pension Fund and the Fourth Swedish National Pension Fund.

14. Shareholder Association for Research and Education, Shareholder Resolution Database, available at (SHARE, “Database”).

15. See, for example, Rights Action, Investing in Conflict: Public Money, Private Gain—Goldcorp in the Americas (2008), available at;Google ScholarImai, Shin, Mehranvar, Ladan & Sander, Jennifer, Breaching Indigenous Law: Canadian Mining in Guatemala, 6 INDIGENOUS LAW JOURNAL 101 (2007) (Imai, “Breaching Indigenous Law”).Google Scholar

16. For recent accounts of local resistance to Goldcorp’s operations in Guatemala, see Hoffman, Andy, Goldcorp Bested by Mayan Mother, THE GLOBE AND MAIL, July 10, 2008,Google Scholar at B1; and Paley, Dawn, Goldcorp: Occupation and Resistance in Guatemala (and Beyond), THE DOMINION, June 21, 2008, available at Scholar

17. International Finance Corporation, Guide to Human Rights Impact Assessment and Management—Executive Overview (2007) at 5, available at$FILE/HRIAexecsummary.pdf.Google Scholar

18. On Common Ground Consultants Inc., Human Rights Assessment of Goldcorp’s Marlin Mine (May 2010), 133, 212, available at Scholar

19. DeCapo, Thomas A., Note, Challenging Objectionable Animal Treatment with the Shareholder Proxy Proposal Rule, 1988 UNIVERSITY OF ILLINOIS LAW REVIEW 119, 138 (1988).Google Scholar

20. Id. at 138–39. The proposal mechanism is an alternative to simply raising an issue from the meeting floor, which “often gets a nonresponsive reply … [and] [e]ven if [the shareholder’s] question is answered … his efforts will generate as much noise as a tree falling in an uninhabited forest.“ See Schwartz, Donald E., & Weiss, Elliott J., An Assessment of the SEC Shareholder Proposal Rule, 65 GEORGETOWN LAW JOURNAL 635, 641 (1977).Google Scholar

21. Canada Business Corporations Act, R.S., c. C-44, §137(2) (1985) (Can.) (CBCA).

22. Id., §137(5)(b), (e), (a); §137(1.1)(a).

23. Id. (prior to the 2001 amendments).

24. Id., §137(5)(b.1).

25. This trend has occurred in other jurisdictions as well. See Guay, T., Doh, J. & Sinclair, G., Non-Governmental Organizations, Shareholder Activism, and Socially Responsible Investments: Ethical, Strategic, and Governance Implications, 52 JOURNAL OF BUSINESS ETHICS 125 (2004).Google Scholar

26. Richardson, Benjamin J., Financing Environmental Change: A New Role for Canadian Environmental Law, 49 MCGILL LAW JOURNAL 145183 (2004).Google Scholar

27. Social Investment Organization, Canadian Social and Environmental Resolutions Reach 13 This Year, Up from Two in 2002, available at Scholar

28. Id.

29. Social Investment Organization, Socially Responsible Shareholder Proposals Double in 2005; Climate Change, Human Rights Leading Issues, available at Scholar

30. Id.

31. Social Investment Organization, Canadian SRI Investors File 28 Social and Environmental Shareholder Proposals with Canadian Firms,, available at Scholar

32. SHARE, “Database,” supra note 14, at

38. As previously alluded to, the shareholder groups at issue may not see themselves as using the firm as a venue for political discourse; this is my own characterization of their activities. See note 9 above. In that regard, I view the Goldcorp proposal as having a two–fold purpose. First, the language of the proposal itself references mitigating risk to shareholder value. See SHARE, “Database,” supra note 14. Second, when considering public statements made by consortium members, it is clear there is also a political/human rights agenda at play. See infra note 62 (“We laud Goldcorp for embracing this tool as a foundation for protecting human rights and addressing community concerns in Guatemala”).

39. Lee, Ian, Corporate Law, Profit Maximization and the ‘Responsible’ Shareholder, 10 STANFORD JOURNAL OF LAW, BUSINESS & FINANCE 31, 6364 (2005)Google Scholar (citations omitted). For my own views on (and disagreement with) the traditional economics–based reaction to shareholder proposals, see Dhir, “Realigning”, supra note 12 at 397–98.Google Scholar

40. Dent, George W. Jr., Proxy Regulation in Search of a Purpose: A Reply to Professor Ryan, 23 GEORGIA LAW REVIEW 815, 820 (1989).Google Scholar See also VOGEL, DAVID, LOBBYING THE CORPORATION: CITIZEN CHALLENGES TO BUSINESS AUTHORITY 208ff. (1978).Google Scholar

41. Palmiter, Alan R., The Shareholder Proposal Rule: A Failed Experiment in Merit Regulation, 45 ALABAMA LAW REVIEW 879, 899 (1993).Google Scholar See also Romano, Roberta, Less is More: Making Institutional Investor Activism a Valuable Mechanism of Corporate Governance, 18 YALE JOURNAL ON REGULATION 174, 186, n. 30 (2001)Google Scholar (“Social responsibility proposals are not a focus of this article because they are not advanced in order to improve corporate performance and are consequently, not compatible with the objective of U.S. corporate law, which is to maximize share value”); and Manne, Henry G., Shareholder Social Proposals Viewed by an Opponent, 24 STANFORD LAW REVIEW 481 (1972).Google Scholar

42. Liebeler, Susan W., A Proposal to Rescind the Shareholder Proposal Rule, 18 GEORGIA LAW REVIEW 425, 426–27 (1984).Google Scholar (“[b]ecause it is an unwise and unwarranted intrusion into private transactions, private markets, and state corporation law, the rule should be rescinded”).

43. Reid, Erin Marie & Toffel, Michael W., Responding to Public and Private Politics: Corporate Disclosure of Climate Change Strategies, Aug. 18, 2008), 8, available at (citations omitted).Google Scholar

44. Id. at 9 (citations omitted).

45. Hond, Frank Den & DeBakker, Frank G.A., Ideologically Motivated Activism: How Activist Groups Influence Corporate Social Change Activities, 32:3 ACADEMY OF MANAGEMENT REVIEW 901, 911 (2007)Google Scholar

46. Id. at 915.

47. Rehbein, K.Waddock, S. & Graves, S.B., Understanding Shareholder Activism: Which Corporations are Targeted?, 43 BUSINESS AND SOCIETY 239, 240 (2004).Google Scholar

48. Sarra, JanisShareholders as Winners and Losers under the Amended Canada Business Corporations Act,, 39 CANADIAN BUSINESS LAW JOURNAL 52, 7475 (2003).Google Scholar

49. Logsdon, J.M. & Van Buren, H.J. III, Beyond the Proxy Vote: Dialogues between Shareholder Activists and Corporations, 87 JOURNAL OF BUSINESS ETHICS 353, 353 (2009)Google Scholar (“The phenomenon of Dialogue between a corporation and dissident shareholders has not been analyzed in the academic literature … because it occurs behind the scenes… Yet this is where a great deal of social change initiated by shareholder activists is negotiated”).

50. Dhir, , “Realigning”, supra note 12 at 405–07;Google Scholar and Dhir, , “The Politics”, supra note 12 at 75.Google Scholar

51. I have also considered this proposal favorably. Dhir, , “The Politics”, supra note 12 at 73–75.Google Scholar

52. Jantzi-Sustainalytics, , Jantzi Research Recommends Goldcorp As Ineligible for SRI Portfolios (2008), available at Scholar

53. OECD Watch, FREDEMI Coalition vs. Goldcorp (Dec. 9, 2009), available at Scholar

54. San Miguelense, Frente de Defensa, Specific Instance Complaint Submitted to the Canadian National Contact Point Pursuant to the OECD Guidelines for Multinational Enterprises Concerning the Operations of Goldcorp Inc. at the Marlin Mine in the Indigenous Community of San Miguel Ixtahuacán, Guatemala (Dec. 9, 2009), available at Scholar

55. Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference (98th Session, 2009), 680, available at Scholar

56. Inter-American Commission on Human Rights, Precautionary Measures Granted by the Commission During 2010 (May 2010), available at Scholar

57. Physicians for Human Rights, Toxic Metals and Indigenous Peoples Near the Marlin Mine in Western Guatemala: Potential Exposures and Impacts on Health (May 2010), 3, available at Scholar

58. Office of the United Nations High Commissioner for Human Rights, Observaciones Preliminares Del Relator Especial De Naciones Unidas Sobre La Situación De Los Derechos Humanos Y Las Libertades Fundamentales De Los Indígenas, S. James Anaya, Sobre Su Visita A Guatemala (13 a 18 de junio de 2010), available at Scholar

59. The Government of Guatemala’s Position Regarding the Request for Precautionary Measures Submitted by Inter–American Commission on Human Rights of the OAS, (June 23, 2010), available at Scholar

60. Human Rights Advocates Denounce Goldcorp’s New Plan to Improve Situation in Guatemala, (July 1, 2010), available at Scholar

61. SHARE, “Database,” supra note 14.

62. Investors Spur Goldcorp to Address Human Rights In Guatemala (Apr. 24, 2008), available at Scholar

63. National Roundtables on Corporate Social Responsibility and the Canadian Extractive Industry in Developing Countries, Advisory Group Report (Mar. 29, 2007), 3, available at Scholar

64. Id. For a discussion of the increased presence of Canadian mining firms in Latin America generally, see Munarriz, G.J., Rhetoric and Reality: The World Bank Development Policies, Mining Corporations, and Indigenous Communities in Latin America, 10 INTERNATIONAL COMMUNITY LAW REVIEW 431, 440 (2008)Google Scholar (citations omitted).

65. Dhir, , “The Politics”, supra note 12 at 5253 (citations omitted).Google Scholar

66. Shareholder Association for Research and Education, Shareholder Engagement Activity Report (Q1/08), 6, available at Scholar

67. SHARE, “Database,” supra note 14.

68. Rights & Democracy, Human Rights Impact Assessments for Foreign Investment Projects (2007), 1819, available at Scholar

69. As noted above, the parties eventually chose On Common Ground Consultants to perform the impact assessment and International Alert to provide peer review. See CSRWire, Human Rights Impact Assessment Contractors Selected and Website Established (Oct. 7, 2008), available at Scholar

70. Rights Action, Open Letter from Rights Action to Goldcorp Inc. and Shareholders (May 1, 2008), available at Scholar

71. Correspondence from Catherine Coumans, MiningWatch Canada to the consortium et al. (Dec. 4, 2008), 1, available at (“Coumans”).Google Scholar

72. Id. at 1-2.

73. Id. at 2.

74. Correspondence from ADISMI, Parroquía de San Miguel Ixtahuacán, the Alcaldía del Pueblo and the Mam Maya communities in resistance (Ágel, San José Ixcaniche, Salitre) to the consortium et al. (Sept. 4, 2008), available at (“ADISMI et al.”).

75. Coumans, , supra note 71, at 2.Google Scholar

76. Engle, Eric, What You Don’t Know Can Hurt You: Human Rights, Shareholder Activism and SEC Reporting Requirements, 57 SYRACUSE LAW. REVIEW. 63, 66 (2006).Google Scholar

77. CBCA, supra note 21, §137(5)(b.1).

78. See SHARE, “Database,” supra note 14, at and Coalition, Fredericton Peace, Maritime Human Rights Group Seeks Answers from Goldcorp (May 16, 2008), available at Scholar

79. SHARE, “Database,” supra note 14.

80. I, of course, acknowledge that this example does not provide conclusive proof of the argument. There may be other reasons why Goldcorp circulated the impact–assessment proposal, but not the informed consent proposal. But it is certainly plausible that the firm’s acceptance of one over the other was at least partially rooted in its interpretation of the legislation and the notable difference in the language of the two proposals. A similar proposal was submitted to Goldcorp in 2010. While the firm did not exclude it, it failed to provide the full text in its management proxy circular and recommended that shareholders vote against the proposal. See SHARE, “Database,” supra note 14, at and Goldcorp, Notice of Annual Meeting of Shareholders and Management Information Circular (Mar. 26, 2010), Schedule B, available at

81. Coumans, , supra note 71, at 2.Google Scholar

82. ADISMI et al., supra note 74. Mayan Mam community leader Javier de Leon recently highlighted this tension in response to my request for an evaluation of the Goldcorp proposal. See Nathanson Centre on Transnational Human Rights, Crime and Security, Press Conference: Goldcorp Operations in Central America (May 18, 2010), video available at Scholar

83. Coumans, , supra note 71, at 2.Google Scholar

84. supra note 12, at 406, 402 (citations omitted).

85. ADISMI et al., supra note 74 (“We will demand that the company be closed down and not be given the opportunity to continue polluting and destroying the lands of this ancient people”).

86. A Summary of Issues Relevant to the Human Rights Impact Assessment (HRIA) of Marlin Mine, Guatemala (Feb. 2009), 6, available at pdf(emphasis added). I understand this statement was not reviewed or approved by the entire investor consortium, which is heartening. Assuming the statement does not reflect the views of other consortium members, it is hoped they will take the opportunity to publicly distance themselves from its substance.Google Scholar

87. Sunter, A.F., TWAIL as Naturalized Epistemological Inquiry, 20 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE. 475, 476 (2007) (“There is almost no recognition of TWAIL in mainstream scholarship”).Google Scholar

88. Okafor, O.C., Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?, 10 INTERNATIONAL COMMUNITY LAW REVIEW. 371 (2008) (Okafor, “Crirical”).Google Scholar

89. Okafor, O.C., Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective, 43 OSGOODE HALL LAW JOURNAL. 171, 176 (2005)Google Scholar (citation omitted). It is beyond the scope of this paper to provide a complete picture of TWAIL-related scholarship. For a very limited sample, see MUTUA, MAKAU W., HUMAN RIGHTS: A POLITICAL AND CULTURAL CRITIQUE (2002);Google ScholarMutua, Makau, What Is TWAIL?, 94 AMERICAN SOCIETY OF INTERNATIONAL LAW PROCEEDINGS 31 (2000)Google ScholarMutua, , “What Is Twail?“);Google ScholarGathii, James Thuo, TWAILing International Law, 98 MICHIGAN LAW REVIEW 2066 (2000),Google ScholarANGHIE, ANTHONY, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW (2004);Google ScholarChimni, B.S., Third World Approaches to International Law: A Manifesto, 8 INTERNATIONAL COMMUNITY LAW REVIEW 3 (2006);Google ScholarRAJAGOPAL, BALAKRISHNAN, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS AND THIRD WORLD RESISTANCE (2003).CrossRefGoogle Scholar

90. Mutua, Makau, Critical Race Theory and International Law: The View of an Insider–Outsider, 45 VILLANOVA LAW REVIEW. 841–43 (2000)Google Scholar

91. Mutua, , “What Is TWAIL&,” supra note 89, at 38.Google Scholar

92. Id.

93. Id.See also Gordon, Ruth, Critical Race Theory and International Law: Convergence and Divergence, 45 VILLANOVA LAW REVIEW. 827, 840 (2000)Google Scholar (“As scholars of international law, it is hoped that aspects of Critical Race Theory might help us articulate a different future, where a voice is given to those who are now voiceless and where those who seek to challenge the prevailing hierarchy might find a theoretical framework that will help mount this challenge.”) For more on the relevance of CRT to international law analysis, see Andrews, Penelope E., Making Room For Critical Race Theory In International Law: Some Practical Pointers, 45 VILLANOVA LAW REVIEW, 855 (2000).Google Scholar

94. See Kangave, J., ‘Taxing’ TWAIL: A Preliminary Inquiry into TWAIL’s Application to the Taxation of Foreign Direct Investment, 10 INTERNATIONAL COMMUNITY LAW REVIEW 389, 391 (2008)Google Scholar (“there is hardly any TWAIL literature exploring the relationship between the Westphalian civilising mission and taxation”); and Odumosu, I.T., Challenges for the (Present/) Future of Third World Approaches to International Law, 10 INTERNATIONAL COMMUNITY LAW REVIEW 467, 476–77 (2008).Google Scholar

95. Kangave, , id., at 391, 392 (citations omitted).Google Scholar

96. Anghie, A., TWAIL: Past and Future, 10 INTERNATIONAL COMMUNITY LAW REVIEW 479, 480 (2008).Google Scholar

97. Mutua, Makau W., Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 HARVARD INTERNATIONAL LAW JOURNAL 201, 201 (2001).Google Scholar

98. Id. at 202.

99. Id. at 203.

100. Id. at 204.

101. Id.

102. Id. at 207.

103. Buchanan, R., Writing Resistance Into International Law, 10 INTERNATIONAL COMMUNITY LAW JOURNAL 445, 447 (2008).Google Scholar

104. TWAIL Vision Statement, as quoted in Mickelson, Taking Stock of TWAIL Histories, 10 INTERNATIONAL COMMUNITY LAW JOURNAL 355, 357 (2008).Google Scholar

105. I, of course, do not mean to suggest that TWAIL voices are a monolith. Rather, they are varied and address a range of interests, but are also connected by a “unifying core.” Okafor, “Critical,” supra note 88, at 375–76.

106. Anghie notes that such a self-reflective process is essential for the TWAIL movement itself: “TWAIL scholarship … needs to be self-critical, aware of the limitations of its own analytic framework, and the voices it has excluded and suppressed.” Anghie, A., What Is TWAIL: Comment, 94 AMERICAN SOCIETY OF INTERNATIONAL LAW PROCEEDINGS 39 (2000).Google Scholar

107. Parmar, Pooja, TWAIL: An Epistemological Inquiry, 10 INTERNATIONAL COMMUNITY LAW REVIEW 363, 365 (2000) (citation omitted).Google Scholar

108. For a similar point, in the context of unilateral home state regulation of corporate activity, see Seck, S.L., Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?, 46 OSGOODE HALL LAW JOURNAL 565, 601 (2008) (“the legitimacy of unilateral home state regulation is likely to be greater if the structure of the regulation gives voice to [subaltern] communities“).Google Scholar

109. This term is employed by numerous academics writing from a TWAIL perspective to “refer to the different methods employed by the West to justify intervention in the affairs of Non-western societies/‘the Other.’” See Kangave, supra note 94, at 390, n. 6 (citation omitted).

110. Supra note 86.

111. Coumans, , supra note 71, at 2.Google Scholar

112. Supra note 62.

113. Coumans, , supra note 71, at 2.Google Scholar

114. Id. at 3.

115. Id.

116. Id.

117. Imai, “Breaching Indigenous Law,“ supra note 15, at 110 (citations omitted).

118. Correspondence from Catherine Coumans, MiningWatch Canada to the consortium et al. (March 16, 2009), 1, available at

119. Law, Bill, Canada Goldmine Worries Grow, BBC NEWS, Mar. 30 2009, available at Scholar

120. Hess, David, Social Reporting and New Governance Regulation: The Prospects of Achieving Stakeholder Accountability through Transparency, 17:3 BUSINESS ETHICS QUARTERLY 453, 453 (2007)Google Scholar (Hess, “New Governance Regulation”).

121. Lobel, Orly, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINNESOTA LAW REVIEW 342, 365 (2004).Google Scholar See also Karkkainen, Bradley C., “New Governance” in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINNESOTA LAW REVIEW 471, 473 (2004) (“This scholarship endeavors simultaneously to chronicle, interpret, analyze, theorize, and advocate a seismic reorientation in both the public policymaking process and the tools employed in policy implementation. The valence of this reorientation…is generally away from the familiar model of command-style, fixed-rule regulation by administrative fiat, and toward a new model of collaborative, multi-party, multi-level, adaptive, problem-solving New Governance“).Google Scholar

122. Hess, David, Public Pensions and the Promise of Shareholder Activism for the Next Frontier of Corporate Governance: Sustainable Economic Development, 2 VIRGINIA LAW AND BUSINESS REVIEW 221, 234 (2007).Google Scholar

123. Hess, “New Governance Regulation,” supra note 120, at 455.

124. Crawford, Adam, Networked Governance and the Post-Regulatory State?, 10:4 THEORETICAL CRIMINOLOGY 449, 458 (2006).Google Scholar (“I believe it would be foolish to ‘throw out the state’ with the governance or governmentality bath water…[W]e should not get carried away with ‘a giddy sense at the moment among many intellectuals that the state is passé’”) (citations omitted).

125. Seck, S.L., Home State Responsibility and Local Communities: The Case of Global Mining, 11 YALE HUMAN RIGHTS & DEVELOPMENT LAW JOURNAL 177, 184, n. 35 (2008) (citations omitted).Google Scholar

126. Conley, John M. & Williams, Cynthia A.Engage, Embed, and Embellish: Theory Versus Practice in the Corporate Social Responsibility Movement, 31 JOURNAL OF CORPORATION LAW 1, 36 (2005) (citations omitted).Google Scholar

127. “[T]he construction of competitive markets requires ongoing state action.”Block, , supra note 2, at 296.Google Scholar

128. Buchanan, , supra note 103, at 447.Google Scholar

129. Kangave, , supra note 94, at 397 (citation omitted).Google Scholar

130. Chimni, , supra note 89, at 13.Google Scholar

131. supra note 12, at 401–02.

132. Government of Canada, Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector (March 2009), 1011, available at;Google ScholarMeyer, Carl, CSR Counsellor’s Dispute Resolution Plan Panned, EMBASSY, June 16, 2010, available at Scholar

133. The Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, “Protect, Respect, and Remedy: A Framework for Business and Human Rights,” UN Doc. A/HRC/8/5 (Apr. 7, 2008).

134. Id. at 17.

135. Id. at 18.

Full text views

Full text views reflects PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views.

Total number of HTML views: 0
Total number of PDF views: 171 *
View data table for this chart

* Views captured on Cambridge Core between September 2016 - 4th December 2020. This data will be updated every 24 hours.

Hostname: page-component-b4dcdd7-fbgh5 Total loading time: 0.779 Render date: 2020-12-04T01:20:37.882Z Query parameters: { "hasAccess": "0", "openAccess": "0", "isLogged": "0", "lang": "en" } Feature Flags last update: Fri Dec 04 2020 00:59:29 GMT+0000 (Coordinated Universal Time) Feature Flags: { "metrics": true, "metricsAbstractViews": false, "peerReview": true, "crossMark": true, "comments": true, "relatedCommentaries": true, "subject": true, "clr": false, "languageSwitch": true }

Send article to Kindle

To send this article to your Kindle, first ensure is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the or variations. ‘’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights, and TWAIL Discourse
Available formats

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights, and TWAIL Discourse
Available formats

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights, and TWAIL Discourse
Available formats

Reply to: Submit a response

Your details

Conflicting interests

Do you have any conflicting interests? *